On The Determination Of "Serious Plot" In The Crime Of Violating Personal Information Of Citizens

In these years,the rapid development of China’s information technology is obvious to all,big data,cloud technology and artificial intelligence industries have also been constantly applied and promoted,which has laid the foundation for China’s entry into the information society.In the information age,the personal information of citizens,as an important resource to promote the development of industry and the change of people’s life,suffer from unprecedented threats of infringement.Based on this,the state has promulgated relevant laws and regulations to protect civil personal information,even incorporates violations of civil personal information into criminal law,and such deterrents are regulated with powerful deterrent penalties.In the 2009,Criminal Law Amendment VII established the crime of selling and illegally obtaining civil personal information;In 2015,the Criminal Law Amendment Nine amended the crime to the crime of violating civil personal information.As a typical plot crime,the satisfaction of “serious plot” is a prerequisite for conviction of the crime of violating civil personal information.However,the amendment does not explain how to determine the “serious plot”.In order to solve the problem that judiciary has different standards for “serious circumstances”,the Supreme People’s Court and Supreme People’s Procuratorate promulgated the “Interpretation on Several Issues concerning the Application of Laws in Handling Criminal Cases of Violating Civil Personal Information”(hereinafter referred to as “Interpretation”)in 2017 to explain the “serious plot” of this crime.Although this judicial interpretation has clarified some judicial disputes,but there’re still doubts about the “serious plot” judicial determination of the crime in practice.It is the key to the “serious plot” of the crime that determine whether the information involved is “civil personal information”,distinguish the type of information and the amount of certified information,and determining “used for crime”,amount of profit and subject identity.First,this crime is established on the premise that the perpetrator violated “civil personal information”.Without the violation of “civil personal information”,no criminal law intervention is required.The definition of “civil personal information” needs to start from the legal interest structure of this crime.Exploring the legal benefits of this crime is the dignity,personal safety and property safety of citizens.In combination with the definition of “civil personal information”,it is concluded that the “civil personal information” infringed by this crime should have the three characteristics of identifiability,authenticity,and legal interest.That is,“civil personal information” must be all information that can be used to identify the identity of a specific natural person and is valid and relevant to the natural person’s personal dignity,personal safety,or property security legal interests.The “triangle method” is used as a criterion to determine whether the “civil personal information” is met.Second,we should consider whether you can distinguish the type of information.Differentiating the types of information at different levels should focus on grasping the core elements of information and the information purpose,and using the information transaction price as a factor to assist in the classification of information types,and comprehensively determine the information types.Due to flaws in the existing standards for the classification of personal information types of citizens,this article proposes to appropriately adjust the level of information sensitivity in the Interpretation,increase biometric information to highly sensitive information,and use 50 pieces of information as criminalization criteria,and effectively responds to the increasing importance,sensitivity,and vulnerability of biometrics.Third,after defining the type of information,the amount of information needs to be determined.The “three-step” model should be followed when making a judgment.In the first step,a specific natural person is first identified,and the information concerning the same natural person is summarized;in the second step,the legal benefits that the information may infringe are determined,and the different legal benefits are different personal information;in the third step,whether the personal information is true and valid,only include real information in the amount of information involved in the case.When verifying the authenticity of information,it is recommended to use 5,000 items as the criterion for distinguishing “batch” information,for the parts that do not reach the “batch” are determined one by one;the parts exceeding 5,000,the samples will be sampled and tested.After calculating the true rate,the true number will be determined by the weighted average true rate calculation.Finally,the reasonableness of the setting plot of this crime is controversial,therefore,we should analyze from the nature or positioning of the “serious plot” to determine whether the plot of this crime is reasonable or not.And the “serious plot” should be identified as objective elements of illegal constitutional elements,excluding subjective liability elements,special preventive punishment elements,and subjective illegal elements.Based on the nature of the “serious plot”,then we could reflecting on whether the current plot is reasonable or not,and deleting the plot which is unreasonable.In addition to this,we should persist in starting with wrongdoing and wrongful results,limit the crime plot of this crime to the information’s types,the number of information,the means of violation,and the consequences of the violation,strictly standardize the identification criteria of “other serious circumstances”.In this way,the science and rationality of the “serious plot” of the crime of infringing upon the crime is realized.